1 316 Health & Democracy Chapter 10 The rights and duties of health care workers
2 The rights and duties of health care workers 317 CONTENTS 10.1 The indispensable role of health care workers The rights of health care workers 319 The right to fair labour practices 319 The right to equality 325 Occupational health and safety rights 330 The right to compensation for occupational injuries and diseases 336 The right to freedom of expression The duties of health care workers 341 Duties to users 341 Duties to the profession 344 Duties to the general public 346
3 318 Health & Democracy 10.1 The indispensable role of health care workers Health care workers (HCWs) play an indispensable role in the implementation of health policy and the provision of health care services. However, their rights are frequently overlooked, and many HCWs complain of poor conditions of service, long hours and low wages. As a result many nurses in particular have chosen to leave the public health service. Some have gone to the private sector where conditions are better but job security is worse. Many have gone abroad. In 2001, for example, it was estimated that over South African health workers were working in developed countries. Health care workers play many different roles in providing health care. Reflecting this, the National Health Act 61 of 2003 recognises several categories of HCWs: Health care personnel: defined as health care providers and health workers, meaning all people who work in the health service. Health care providers: defined as people providing health services in terms of any law, including the Allied Health Professions Act 63 of 1982, the Health Professions Act 56 of 1974, the Nursing Act 50 of 1978, the Pharmacy Act 53 of 1974, and the Dental Technicians Act 19 of This means doctors, nurses, dentists, pharmacists and medical specialists. Health workers: defined as all people involved in the provision of health services to a user and who are not health care providers, such as persons responsible for cleaning, security, medical waste disposal and clerical work. It also includes counsellors, community health workers, environmental health officers, emergency medical service workers and volunteers. Together, these workers have the responsibility of ensuring that the government s health policies are translated into service delivery. This chapter provides an overview of the rights and duties of HCWs in both the public and private health care sectors. It starts by considering the rights of HCWs as ordinary workers, focusing on the right to fair labour practices and the right to organise in the workplace, the right to equality, occupational health and safety rights, and the rights to freedom of conscience, religion, thought, belief and opinion. In this respect we examine how the rights of all HCWs are protected by the Constitution and the National Health Act, as well as a range of general employment-related statutes, including:
4 The rights and duties of health care workers 319 The Labour Relations Act 65 of 1995 The Basic Conditions of Employment Act 75 of 1997 The Employment Equity Act 55 of 1998 The Occupational Health and Safety Act 85 of 1993 The Compensation for Occupational Injuries and Diseases Act 130 of 1993 The Protected Disclosures Act 26 of 2000 The Promotion of Administrative Justice Act 3 of 2000 The Public Service Act, Proclamation 103 of 1994 and regulations The Public Service Labour Relations Act 105 of 1994 We then consider the specific duties of health care providers, such as their duties to their respective professions, to users of the health system and to the general public. Here we look at some of the laws and policies that regulate the professional conduct of health care providers, including: The Health Professions Act 56 of 1974 The Nursing Act 50 of 1978 The Batho Pele Principles of 1997 NOTE: This chapter does not deal with the duties of traditional health practitioners. These are described fully in Chapter 7 on traditional and alternative health care The rights of health care workers Under apartheid, black workers were denied basic human rights to organize in trade unions of their own choice, to strike and to protest against low wages and poor working conditions. However, in the 1970s and 1980s the South African labour movement organized mainly under the Congress of South African Trade Unions (COSATU) won many rights in the course of strikes and struggles. Today, the Constitution entrenches workers rights like other human rights and various labour laws have been enacted to improve working conditions and enable workers to enforce their rights. The right to fair labour practices The constitutional right to fair labour practices Section 23(1) of the Constitution says that everyone has the right to fair labour practices. The Labour Relations Act 66 of 1995 and the Employment Equity Act, 55 of 1998 elaborate on the right to fair labour practices and are dealt with in more detail in the next section.
5 320 Health & Democracy Section 23(2) of the Constitution says that every worker has the right: to form and join a trade union; to participate in the activities and programmes of a trade union; and to strike. This includes health care workers, who are not designated as providing an essential service. CASE STUDY: USING THE CONSTITUTION TO IMPROVE LABOUR RIGHTS Workers who do not benefit from specific labour legislation have used section 23 of the Constitution to entrench their rights. For example, in the case of South African National Defence Force Union v Minister of Defence 1999 (4) SA 469 CC, soldiers used section 23 to gain the right to form and join their own trade union. In this case the Constitutional Court held that the term worker in section 23(2) should be interpreted to include members of the armed forces. There are other rights in the Constitution that are also significant for health care workers, including: The right to equality (section 9): this is the basis for protecting workers against unfair discrimination, and for affirmative action to promote the advancement of previously disadvantaged groups. The right to human dignity (section 10): this was already an important element in any common law contract of employment, promoting mutual respect between employer and employee, and putting this into the Constitution entrenches it further. The rights to freedom and security of the person, freedom of opinion, freedom of expression, assembly, demonstration, picket and petition, freedom of association, freedom of movement, freedom of trade, occupation and profession, access to courts, and arrested and detained persons: these all entrench the organising space needed for a vibrant and democratic trade union movement which is transparent, accountable and participatory and vital for the protection of health care worker s rights and the improvement of working conditions. But in addition it is important for health care workers to know and take advantage of their constitutional rights to: Access to information (section 32) [see also section 16 of LRA]: it could be important to get hold of additional information which might be required for trade unions to negotiate in collective bargaining and retrenchments.
6 The rights and duties of health care workers 321 For more information see the Promotion of Access to Information Act. Just administrative action (section 33): this might be important to reinforce the rights of workers in dismissal and disciplinary disputes. For more information see the Promotion of Administrative Justice Act. The Labour Relations Act and Basic Conditions of Employment Act After the advent of democracy in 1994 a process began to codify the constitutional right to fair labour practices into labour legislation and to reform existing labour laws. The resulting labour laws spell out workers constitutional rights and the forums for their enforcement. The most important of these laws are the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA). These laws deal with a range of issues from hours of work, annual leave, sick leave, notice pay (under the BCEA) to rights to challenge unfair labour practices and unfair dismissals and negotiate and strike over better working conditions (under the LRA). The LRA s main purpose is to advance economic development, social justice, labour peace and the democratisation of the workplace. Similarly the BCEA aims to give effect to the fair labour practice provision in the Constitution by setting minimum terms of employment. It sets maximum hours of work and minimum days of leave for unorganised workers and provides for ways to regulate and alter these, sector by sector, through sectoral determinations. For example the BCEA states that: Every employee has a right to six weeks paid sick leave in a three-year cycle. In the first six months of work, an employee may take one day of sick leave for every 26 days worked. If a worker is absent repeatedly or for more than two days at a time, a medical certificate is required. For deaths, births and illness of children in the family an employee may take up to three days paid family responsibility leave a year, provided that they have been employed for more than four months. Below we explain some of the most important aspects of these laws: Protection against unfair dismissals and unfair labour practices The LRA protects all employees, including health care workers, against dismissal unless the employer can show that the reasons for the dismissal and the process were fair. The following reasons are internationally accepted as fair:
7 322 Health & Democracy misconduct, eg being absent from work without permission; incapacity, eg being unable to carry out the work required; and retrenchment eg the employer no longer needs that type of work (called dismissal for operational requirements in the LRA). The LRA makes it automatically unfair to dismiss workers for arbitrary reasons unrelated to conduct or performance at work. This includes being active in trade unions, being part of a strike or supporting a strike which follows the prescribed dispute procedures, pregnancy or making a disclosure, for example of corruption, in terms of the Protected Disclosures Act 26 of Workers may not be dismissed for discriminatory reasons like race, gender or HIV status. CASE STUDY: AN UNFAIR DISMISSAL? Naude v MEC: DoH, Mpumalanga (Labour Court) JS 331/04 In June 2000, Dr N was appointed as a Community Service Medical Officer at Rob Ferreira Hospital in Nelspruit, Mpumalanga. In March 2001, he applied to the Mpumalanga Department of Health (DoH) to upgrade his position to a Junior Medical Officer. His application was submitted to the medical superintendent, who in turn submitted it to the human resources (HR) division of the Mpumalanga DoH. The medical superintendent received oral confirmation from a senior official in HR that the MEC, Sibongile Manana, had approved the upgrading of Dr N s post. Some time later, the MEC was served with court papers in a case brought against her by an NGO called the Greater Nelspruit Rape Intervention Project (GRIP) regarding their right to provide access to post-exposure prophylaxis (PEP) services for reducing the risk of HIV transmission following sexual assault at Rob Ferreira Hospital. The court papers contained an affidavit made by Dr N in support of GRIP s case. Dr N s contract was not extended to that of a Junior Medical Officer as expected. A conciliation meeting at the Public Health Bargaining Council did not resolve the dispute over his unfair discrimination dismissal. In 2006 his case was still pending before the Labour Court. In terms of the LRA, unfair labour practices include: Unfair conduct of the employer in relation to promotion, demotion, probation, providing training or supplying benefits. Unfair suspension or other unfair disciplinary action less serious than dismissal. An employer making a worker suffer some occupational detriment or disadvantage at work after the worker has made a disclosure of information eg where the employee has exposed corruption, such as theft in the hospital pharmacy or laundry.
8 The rights and duties of health care workers 323 Health care workers can exercise their right to strike provided they are not one of the groups specified in a Bargaining Council agreement to provide minimum services eg the intensive care section in hospitals or a designated essential service by the Essential Services Committee. The Essential Services Committee has been established by the Labour Relations Act to determine essential services. Some services which have been designated as essential services include emergency health services, blood transfusion services, nursing and medical and paramedical services (including support services such as catering, medical records, security, porter and reception, pharmaceutical and dispensary, medicine quality control laboratory, forensics, laundry work, clinical engineering, hospital engineering, waste removal, mortuary services and pest control). Conditions at work: Collective agreements at bargaining councils for public sector workers All health care workers have rights to organise in trade unions. But health care workers who are employed by the government are also members of the public service, and as such are also governed by the laws and regulations that apply to the public service as a whole. The public service consists of employees of the national departments and the provincial administrations who deliver a variety of public services, including health services. Section 197(2) of the Constitution states that the terms and conditions of employment in the public service must be regulated by national legislation. The structure of management in the public sector is determined by legislation, particularly the Public Service Act, Proclamation 103 of In 1996 the Public Service Amendment Laws reconfigured managerial power in the public service in an attempt to ensure that it could meet its constitutional obligations. Under the amended laws the terms and conditions of employment of public servants were incorporated into a collective agreement of the Public Service Co-ordinating Bargaining Council (PSCBC). The power of authority to determine pay and other conditions of service is now vested in the Minister of Public Service and Administration. Collective bargaining is conducted at national level, and all pay scales are determined in a central collective bargaining forum at the PSCBC. Collective agreements reached at the PSCBC cover most areas of employment including recruitment, salary scales and allowances, job descriptions, grading and remuneration, service benefits, leave, working hours, emergency work, probations, policy on dismissals and education and training.
9 324 Health & Democracy In recognition of the fact that different types of work raise different types of issues the PSCBC has designated three sectors for the establishment of sectoral bargaining councils. These are: the Public Health and Welfare Sectoral Bargaining Council the General Public Service Sectoral Bargaining Council the Safety and Security Sectoral Bargaining Council. The Public Health and Welfare Sectoral Bargaining Council (PHWSBC) covers all employees of the Department of Health and the Department of Welfare, at national and provincial level. It is made up of representatives from the relevant national and provincial government departments and representatives from the health care sector. These councils also deal with disputes and can make collective agreements on organisation of work, employment and dismissals. EXAMPLE: AN AGREEMENT ON HIV/AIDS In 2001 the PHWSBC reached an agreement on HIV/AIDS. This is reflected in the 2001 Public Service Regulations where Chapter 1 Part VI paragraph E covers HIV/AIDS and related diseases. It sets out the rights of employees and duties of heads of departments in relation to occupational exposure, non-discrimination, HIV testing, confidentiality and disclosure and a health promotion programme, eg departmental workplace policies. Similarly, Resolution 8 of 2001 of the PSCBC sets out a more detailed policy on HIV/AIDS coupled with a framework for training on these issues. It recognises the Code of Good Practice on Key Aspects of HIV/AIDS and Employment attached to the Employment Equity Act and the Southern African Development Community (SADC) Code on HIV/AIDS and Employment. The rights of private sector health workers As we explained in chapters 4 and 6, South Africa s health system is divided between private and publicly-funded sectors. Workers in privately owned health care institutions are not covered by the PSCBC or PHWSBC. A large proportion of the work in private hospitals and clinics is done by the staff of nursing, cleaning, private security and other agencies who provide low wages, little or no job security and no benefits. These workers have to negotiate, with the assistance of their trade unions, workplace or company-level collective agreements to regulate their terms of employment. However, private workers can still use labour legislation to enforce their rights. In addition, many public sector nurses also work in private hospitals and clinics to improve their income. Because these employees are moonlighting they often do not invoke their rights against unfair labour practices for fear of losing the opportunity to supplement their income in the private sector.
10 The rights and duties of health care workers 325 The right to equality The Employment Equity Act The right to equality is entrenched in section 9 of the Constitution. In the labour context, it is recognised in the Employment Equity Act (EEA). This Act aims to achieve equity in the workplace by promoting equal opportunity and fair treatment in employment by: eliminating unfair discrimination; and implementing affirmative action measures to redress the disadvantages in employment that are still experienced by certain groups as a result of apartheid. The EEA aims to prevent discrimination of employees (including people applying for jobs) by the employer, a co-worker, another employer or a client of the employer. The EEA refers to discrimination in relation to any employment policy or practice, very broadly defined to include recruitment procedures, advertising and selection criteria, the appointments process, job classification and grading, remuneration, benefits, terms of employment, job assignments, the working environment and facilities, training and development, performance evaluation systems, promotion, transfers, demotion, disciplinary issues, and dismissals policy. The EEA covers all the grounds for discrimination listed in the Constitution, for example race, gender, and ethnic origin. But it also adds some new grounds: pregnancy, following the development of case law in recent disputes; and HIV/AIDS status, as a result of the high level of discrimination against people with HIV. Proving unfair discrimination If a person feels that they have been unfairly discriminated against, there are two stages to a complaint: The first question to ask is whether or not there is evidence of the employer having applied one of the listed or unlisted grounds of discrimination. If the answer to this question is yes, there is discrimination. For example, being treated differently on the basis of HIV status would apply. The second question to decide is whether this discrimination is fair or unfair. In the past the Labour Court has looked at the commercial rationale for the employer s action. Today it must also consider
11 326 Health & Democracy constitutional values, looking at the impact of the differentiation on the individual, and then looking at the objective reasons. The court will then consider whether the employer had looked at other, less harmful, methods of achieving their objectives. Discrimination can be direct or indirect. Direct discrimination would exist if an employer transfers an employee who has HIV from a large internal office into a small solitary outside cubicle with no access to the same toilet or kitchen. Indirect discrimination is harder to show. It might exist if an employer, without giving reasons, failed to send female employees on training courses, thereby making their promotion impossible. CASE STUDY: DISCRIMINATION ON AN UNLISTED GROUND In the case of NUMSA v Gabriels (Pty) Ltd ILJ 2088 (LC) the court said that, where differentiation is based on an unlisted ground in the EEA, it is not enough for the complainant to show that the employment policy or practice is arbitrary, she must show that it is based on an analogous ground. The complainant must identify the ground of discrimination relied upon and must show that it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings or to affect them adversely in a comparable manner. The complainant must establish that the discrimination is unfair with regard to the impact of the discrimination. CASE STUDY: DISCRIMINATION ON THE BASIS OF HIV STATUS In Hoffman v SAA BCLR 1211 (CC) an applicant for a job as a cabin attendant sued South African Airways (SAA) for refusing to employ him solely because he had HIV. One of SAA s defences was that a mandatory yellow fever vaccination for cabin attendants (needed for travel to West Africa) might exacerbate his illness. Expert medical evidence however showed that people with HIV can receive this vaccination if they are not in the later stages of the HIV infection and being HIV negative was accordingly not an inherent requirement of the job of cabin attendant. The Constitutional Court said that employers should not lump all HIV positive employees together but should look at the stages of the infection and the impact on the individual. The Court said that the policy to exclude HIV positive applicants from employment as cabin attendants amounted to unfair discrimination. The key factor in determining the unfairness of discrimination is its impact on the person discriminated against.
12 The rights and duties of health care workers 327 The most common defence for discrimination is for the employer to show that the discrimination was fair. In South Africa affirmative action is fair discrimination because it tries to overcome some of the disadvantages black people faced in the past. Discrimination that relates to the ability of a person to perform an inherent requirement of the job is also fair. An inherent requirement of a job is a skill or capability without which a job may not be properly performed. For example, an airline pilot must be able to see this fairly discriminates against blind people. Codes of good practice The EEA allows for the establishment of codes of good practice to give direction to employers and workers on how to tackle particular issues. These codes are not equivalent to laws. However, because they are jointly negotiated at the National Economic Development and Labour Advisory Council (Nedlac) by the labour movement, employers organizations and the government, they are considered binding and any departure must be justified. The Code of Good Practice on Disability in the Workplace seeks to limit the impact of the section in the EEA which allows for discrimination on the basis of an inherent requirement of the job. The Code strictly interprets inherent requirements as essential features or indispensable attributes of the job. The Code of Good Practice on Key Aspects of HIV/AIDS and Employment (2000) is based on the principle that no person may be unfairly discriminated against on the basis of HIV status. The Code sets out guidelines for employers and employees to prevent unfair discrimination against workers living with HIV and to manage HIV/AIDS within the workplace. The Code covers: HIV testing, confidentiality and disclosure; provision of equitable employee benefits; creating a non-discriminatory work environment; dealing with dismissals; and managing grievance procedures. The Department of Labour has released HIV/AIDS Technical Assistance Guidelines on the Code which explain in detail how the Code should be interpreted and implemented.
13 328 Health & Democracy Other codes include: the revised Code of Good Practice on Sexual Harassment; and the Code of Good Practice on Pregnancy and the Period after the Birth of a Child. Medical testing under the EEA One of the ways that the EEA protects against unfair discrimination is by limiting the ability of employers to determine a worker s health status (including HIV status) without the worker s consent. Section 7 of the EEA limits an employer s ability to use medical testing as a way to establish a worker s medical condition. Section 7(1) prevents an employer from testing a worker for a medical condition unless: the law allows or requires it; or the testing is justifiable based on: medical facts; employment conditions; social policy; the fair distribution of employee benefits; or the inherent requirements of the job. When it comes to HIV testing, the law is even stronger: section 7(2) of the EEA says that testing of an employee to determine that employee s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court. section 50(4) allows a Labour Court that permits HIV testing to set conditions for the testing, dealing with: providing counselling; maintaining confidentiality; the period during which testing is authorised; and the category of jobs for which testing is authorised. These restrictions on testing apply during an application for employment, as a condition of employment, during procedures related to termination of employment, as an eligibility requirement for training or staff development programmes, and as an access requirement to obtain employee benefits. When is Labour Court approval not needed for HIV testing? Workplace VCT programmes Labour Court approval to test employees for HIV is not required when HIV testing is voluntary and confidential in terms of a workplace voluntary counselling and testing (VCT) programme. Chapter 8 sets out the rights of people to provide informed consent for medical procedures including HIV testing.
14 The rights and duties of health care workers 329 Sero-prevalence surveys Labour Court approval is also not required where HIV tests are conducted for the purpose of determining the prevalence of HIV in that workplace (known as a sero-prevalence survey). However, this type of HIV testing should be conducted through an expert, outside agency to make sure the results of the tests are confidential. Sero-prevalence studies must be in accordance with ethical and legal research principles. Occupational exposure Health care workers can be tested for HIV after an occupational accident that carried the risk of exposure to blood or other bodily fluids. Such tests should take place only at the initiative of a worker, with informed consent and pre- and post-test counselling and strict procedures regarding the confidentiality of an employee s HIV status. A health care worker would benefit from such as test which would show whether it is necessary to take post-exposure prophylaxis and can be used as evidence in any subsequent claim to the Compensation Commissioner. In the case of PFG Building Glass (Pty) Ltd v CEPPAWU BLLR 475 (LC) the Labour Court emphasised that where employees consent to HIV testing, the Labour Court should not interfere with their exercise of control over their own bodies. In such cases, there would be no need for an application to the Labour Court. In the Labour Court case of I&J Ltd v Trawler and Line Fishing Union & others (2003) 24 ILJ 565 (LC), the court held that section 7(2) was aimed at prohibiting those HIV tests where the employer is enabled to determine the HIV status of a particular employee. Section 7(2) was not intended to affect voluntary testing where no disadvantage attaches to the decision of an employee not to submit to testing. Affirmative action Section 9(2) of the Bill of Rights states: To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. This is commonly known as affirmative action. The EEA is the law through which the State aims to advance people who were previously disadvantaged in employment. It identifies as designated groups black people, women and the disabled and requires employers to take affirmative action measures to redress these disadvantages and to further diversity in the workplace. Employers must ensure more equal opportunities, and equitable representation of these three groups at all levels in the workplace, through reasonable accommodation of suitably qualified people and trying to retain and develop them. The main mechanism provided for this is the requirement that all public sector employers, as well as larger or higher-turnover private sector employers consult over an employment equity plan that aims at more equitable
15 330 Health & Democracy representation of women, black and disabled people at higher levels in the workplace. This plan should be discussed with representatives from each department or category of work, set goals for equity transformation over one to five years, and be reported at intervals to the Department of Labour. Such a plan is supposed to follow an audit of all employment policies and practices to identify barriers to such advancement. In terms of the EEA the Department of Labour has issued a draft Human Resources Code of Good Practice which provides guidelines on the elimination of unfair discrimination and the implementation of affirmative action measures in the context of key human resource areas such as recruitment, probation, medical and psychological assessments, conditions of employment, remuneration, job descriptions, skills development, promotion, discipline, and termination of employment. Occupational health and safety rights Health care workers have a much greater likelihood of exposure to ill-health and injury associated with the practice of medicine than employees in most other forms of employment. This makes knowing the law and enforcing it (if necessary through pre-emptive collective action) essential. Section 24 of the Constitution states that everyone has the right to an environment that is not harmful to their health or well-being. This must include the right to a safe working environment, necessary to prevent accidents and workers from contracting occupational diseases. Key Point Workers also have a right of access to information about the health effects of the hazards that may be present in their workplaces. The Occupational Health and Safety Act The Occupational Health and Safety Act is concerned with the impact of the workplace on the physical, emotional and psychological health and wellbeing of employees. This includes everything from work activities themselves to the materials and processes involved. The Act is based on the principle that workers and employers should regulate their own workplaces to prevent occupational injury and disease.